Empower AI, Inc.--Costs (B-422971.5)

You should not care.

Categories: Reimbursement of protest costs, corrective actions, unstated evaluation criteria

Date: 15 September 2025

URL: https://www.gao.gov/products/b-422971.5

Empower AI requests that GAO recommend reimbursement of the costs of filing and pursuing its protests challenging the issuance of a task order to Booz Allen Hamilton for services supporting improper payment rate calculations under the Medicaid and CHIP programs for the Centers for Medicare and Medicaid Services. Empower AI, the incumbent for medical reviews and data processing, asserts CMS unduly delayed corrective action in the face of clearly meritorious protest allegations across multiple grounds.

Unstated evaluation factor granted: The solicitation notified vendors that cloud migration would occur but failed to disclose the agency's preference for an AWS solution. The evaluation record showed CMS treated the AWS preference as a de facto requirement, penalizing Empower AI for proposing a different platform and crediting Booz Allen for proposing AWS. The agency delayed corrective action until after asserting the protest lacked merit, then amended the solicitation to disclose the preference. GAO found this constituted undue delay in the face of a clearly meritorious allegation and recommended cost reimbursement.

Price realism, OCI, and remaining grounds were denied: GAO found the agency's price analysis was consistent with FAR 8.405-2 requirements to consider labor mix and level of effort, not an improper realism analysis. Allegations regarding organizational conflicts of interest, Booz Allen's assumptions, and key personnel qualifications were not clearly meritorious; GAO's own requests for additional information during proceedings confirmed these were close questions.

The request for reimbursement is granted in part and denied in part. The case is a pointed reminder that agencies must disclose evaluation preferences—particularly platform-specific technology preferences—in the solicitation, and that failure to do so can result in cost liability.

Digest

Request that GAO recommend reimbursement of protest costs is granted where the agency unduly delayed taking corrective action in response to a clearly meritorious protest argument and denied where the other protest allegations were not clearly meritorious.